Wheatley & Co. v. West

Bleckley, Justice. 1, 2, 3, 4. The numerous points made, down to the delivery of the charge of the court, and in respect to the contents of the charge itself, are insufficient to shake the judgment. The declaration sets forth a cause of action. The agreement of the parties put out of the case all questions of fact, except the controversy in regard to the right of the defendants to appropriate a certain part of the money to a debt due them from the plaintiff’s brother. They made the appropriation: if with right, they are protected ; [407] if without right, the plaintiff ought to recover. The charge of the court, as set out in the bill of exceptions, is reasonably ample and minute, and contains no substantial error. It covers the case so fully that, .while some of the written requests to charge seem unobjectionable, the refusal to incorporate them as a part of the charge is not cause for a new trial. The low tone of the court iii ruling out testimony, was not a matter to be passed over by counsel at the time without remark, and afterwards brought up as cause for a new trial. The low tone of a witness in delivering testimony might as well be thus passed, and then complained of. If the parties or their counsel, want higher tones, they must call for them, and not seem to acquiesce in those which they deem too faint and indistinct. Besides, suppose a tone in the superior court to have a wrong pitch, how are we to review it ? We are not sure that mere sound is amenable to a writ of error. Perhaps, with the aid of score and scale, as in music, it might be brought before us and take its chances for reversal or affirmance. 2. The Code entitles the counsel of either party, on the final trial of a civil case, to request that the charge of the court to the jury be delivered in writing, and to have it so delivered. In this case the request was made, and the court failed to comply with it, being under the impression that the request was waived. What produced this impression is not stated, and it seems that, though the request itself was an absolute certainty, the supposed waiver of it was altogether uncertain. A doubtful waiver cannot de feat a right which has become vested to the exclusion of all doubt. The request came in due time, and was express. Unless it was expressly waived or withdrawn, the court should have complied with it. Not to comply was the denial of a clear statutory right; how clear, can be seen by a mere glance at sections 244 and 245 of the Code, which read as follows: “ The judges of the superior courts of this state shall, in all cases of felony, and on the final or appeal trial of all civil cases tried before them, give theii [408] charges to the jury in writing; that is to say, shall write out their charges and read the same to the jury, when the counsel for either party shall require them to do so; and that it shall be error for such judge to give any other or additional charge than that so written out and read. The charge so written out and read as aforesaid, shall be filed with the clerk of the court in which the same was given, and shall be accessible to all persons interested in the same; and the clerk shall give certified copies thereof to any person applying for the same, upon the payment of the usual fee.” These sections of the Code stand as a kind of constitutional law between bench and bar. They entitle the counsel to have the written word, instead of oral tradition. They provide for preserving and handing down the word as a sure and enduring memorial of what was actually delivered. There is to be no controversy over the text of the charge; no uncertainty as to what revelation fell from the bench into the jury box. The judge is not to speak, but to read; and when his manuscript is exhausted he is to become silent. It would seem that if counsel cannot depend upon the guaranty afforded them by these sections of the Code, they can depend upon no promise made to them in the law. If they cannot get a written charge, what can they get ? What are they to trust in the whole compass of the statutes, if they are to be disappointed when they cite such peremptory language as that found in these two sections ? The judge has no discretion; he must write out his charge and read it to the jury, and he must not “give any other or additional charge.” 38 Ga., 304; 54 Ib., 231; 55 Ib., 208; 57 Ib., 285, (18). As to substituting stenographic reporting in place of first writing, and then reading the charge as written, that is for the general assembly, and not for the judiciary; and, as to there being no complaint that the charge was not correctly reported, it cannot be that in order to get a written charge, when any other is positively forbidden by statute, the plaintiff in error must show or suggest that the oral charge was not [409] correctly taken down by the reporter. The complaint is that the whole oral charge was illegal because the case was one for a written charge, and no other. What objection to a charge is more fatal than that evei;y syllable of it was delivered contrary to law? Of course, no moral blame attaches to the presiding judge for the erroneous delivery. He acted under an impression which justified him morally, and would equally do so legally if the source of it could be verified. If it could be traced back to any actual waiver on the part of counsel, the whole point would disappear. Judgment reversed.